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Accident Compensation Cases

Smith v Accident Compensation Corporation (DC, 10/07/13)

Judgment Text

Judge D A Ongley
The respondent has declined to consider an application for cover for a neck injury, on the ground that it is a claim that has already been dealt with. The earlier claim was lodged for tinnitus caused by chiropractic treatment and it related to the same treatment and essentially the same mode of injury. The tinnitus claim was rejected and the respondent's decision was confirmed on appeal. 
The point in dispute is whether the neck injury claim raises the same issue that was decided between the parties in the earlier review. Two legal issues arise: 
whether a decision concerning the neck injury claim was an essential part of the review decision in the tinnitus claim; and 
whether the appellant should have brought his whole case before the earlier review. 
The Corporation's letter dated 26 May 2009 declining the second claim (the subject of this appeal) was headed “Correspondence” and did not offer a right of review. It stated: 
“Thank you for contacting us regarding your claim for a neck injury as a result of Chiropractic treatment in October 2006. This neck injury was considered under the Review decision dated 13/3/07 under claim U5620781304. This Review decision found that there was no evidence of any injury to your neck caused by treatment. 
After looking at all the evidence provided under your original claim, the recent clinical notes submitted by your General Practitioner Dr Mark Stilwell, and your complete medical record from Mid-Central DHB, ACC has found no new evidence of any injury to your neck caused by treatment This claim has previously been determined by way of a review hearing. The Reviewer's decision is binding to all parties and appeal rights were attached to the review decision. ”
Most of the background can be extracted from the first review decision (the tinnitus claim). 
The Reviewer, Ms Nyleen Ford, stated that Mr Smith had applied for cover for injuries he sustained when receiving treatment from a chiropractor. That overstated the scope of the claim. The particulars referred to “Diagnosis — unspecified condition” and “Injury comment — execerbation [sic] of tinnitus”. ACC's decision on 28 November 2006 stated that the claim was for “Exacerbation of tinnitus post cervical manipulation”. So neither the claim nor the decision mentioned any physical injury. 
In her review decision, Ms Ford recorded that Mr Smith had suffered from mild tinnitus for many years before it became worse following chiropractor cervical manipulation. The decision referred to various medical reports and noted the arguments advanced by the parties. The appellant contended that he suffered a type of whiplash injury. The respondent argued that there was insufficient evidence of a personal injury and no evidence of any injury that would have caused increased tinnitus. The Reviewer correctly considered that tinnitus is not a physical condition, and that it could be covered only as a consequence of some physical personal injury. She stated: 
“Whether or not there has been a physical injury is a medical question that must be answered by a registered health professional. I have found no diagnosis of a whiplash injury that has been made by a registered health professional. …  ”
The review decision then examined areas of conflict in medical opinions and preferred the opinion of Dr Peter Blake, consultant otolaryngologist. There were three main propositions concerning causation: 
that tinnitus is not an personal injury; 
that there was insufficient evidence that Mr Smith suffered a personal injury caused by chiropractic manipulation; and 
that the chiropractic manipulation would not cause tinnitus 
The third point provided a basis for dismissing the review, without having to decide whether there was a personal injury. Dr Blake had said: 
“There is no scientific or rational basis for presuming that manipulation of the neck would lead to an increase in tinnitus. Temporal link does not equate causal link and the fact that the tinnitus worsened at a time when Mr Smith received manipulation of his neck does not constitute sufficient evidence for establishing a causal link between the treatment and the exacerbation of the tinnitus. 
Tinnitus is not recognised as a complication of treatment of the neck. There is no reason to suppose that there was anything other than coincidence between the worsening of the tinnitus and the neck treatment. ”
The Reviewer's final conclusion was expressed as follows: 
“My findings are that tinnitus is not an injury and there is no evidence of any other injury to Mr Smith's neck that was caused by the treatment. 
I therefore, find that there is insufficient evidence to prove, on the balance of probabilities, that there is an identifiable personal injury. ”
In this appeal, Mr Beck for the appellant argued that the finding that there was no physical injury, was not a necessary question before the Reviewer. He submitted that the finding was incidental but not essential to the decision. 
ACC Decision 
The lead up to the second application was a series of consultations with the appellant's GP. The notes convey a primary concern with the tinnitus problem, but later an emerging concern about persistent symptoms of neck injury. A summary of the GP notes is as follows: 
6 June 2007 
Dr Scott — “Pt has phoned to ask it his Tinnitus may be due to ‘Physical injury’ from the Chiropractic treatment?? He forgot to ask at appt with SJ yesterday. Says his ACC Advocate has told him they will cover his treatment if due to ‘Physical injury’ advised will check with SJ and let him know. 
6 June 2007 
Dr Shak?? - talked to mr smith this am; discussed as per PN LS note. will try to proceed to say that tinnitus is due to neck manipulation but there is no way to prove it, will d/w, dr kovacevic re this 
12 Jan 2009 
Dr Mark Stillwell — “Ongoing neck pain, parasthesiae both arms tinnitus. Still looking for cause of problems and cure. Advised that if it is related to neck injury then there are no further investigations that would shed any more light on the cause and treatment for tinnitus are limited 
Treatment for neck pain are also limited as would not go back to physic osteopath or chiropractor as his neck manipulation seemed to be the cause of ail his problems. Advised needs to adjust to accept his limitations and look at what is possible for his future within this. 
03 Mar 2009 
Dr Stillwell - Has been told by ACC that is able to start a claim for a neck injury resulting from the chiropractic treatment in Oct 2006. The symptoms documented in patient's letter of 12 Feb 2009 were caused by the neck injury. Will need ACC45 for this. I am not sure whether this has already been considered as part of the original ACC claim that was rejected or not. 
i.e Manipulation -> neck injury with tinnitus 
or Manipulation -> tinnitus (rejected) 
Need to talk to ACC and Dave will get me the contact details for this. 
4 March 2009 
Spoke to ACC Chris Bennett Private secretary to minister on 04 81768 7 Does not have full details of Dave's case but if Dave sustained a neck injury from chiropractic treatment then this should be claimed for rather than tinnitus. 
Am still not sure if this has been considered as the mechanism of development of tinnitus or not but will start new claim process for this. 
Have parked ACC45 and need to see Dave again to clarify details of this. 
ACC45: ACC45 VD94608 - Developed symptoms of neck injury fess than 30min following ch 
Dx: Neck sprain (S570,00) (Probable) • Not applicable 
6 March 2009 
Dr Stillwell 
See notes 27 Feb 2007 
Developed severe tinnitus immediately following chiropractic neck manipulation and subsequently within 24hrs got occipital headache, vomiting and blurred vision. 
All of symptoms associated with neck injuries and listed in patient notes of 12 Fob 09 appear to have been exacerbated by the manipulation and are consistent with neck injury. 
Prior to the manipulation had upper trapezius pain and some sternomastoid pain and was seeing chiropractor for these symptoms. Did not have upper cervical and occipital pain. 
Vomiting probably lasted about 3 months post manipulation but other symptoms have continued. 
Returned to 6 Oct 2006 and had second manipulation of the same strength which made symptoms much worse still. ”
Issue estoppel 
To raise an issue estoppel in the second review and appeal, the respondent may show that the Reviewer's decision on the question of physical injury was an essential part of the rationale of the review decision, even if the question before the Reviewer concerned tinnitus and not physical injury. 
An authority for that is Talyancich v Index Developments Ltd [1992] 3 NLZR 28 (CA), where the Court of Appeal said (at p38): 
“Issue estoppel arises where an earlier decision is relied upon, not as determining the existence or non-existence of the cause of action, but as determining, as an essential and fundamental step in the logic of the judgment, without which it could not stand, some lesser issue which is necessary to establish (or demolish) the cause of action set up in the later proceedings: Spencer Bower & Turner, The Doctrine of Res Judicata (2nd ed) 149-150 para 191. The classic definition is that of Diplock LJ in Thoday v Thoday [1964] P 181Has Cases Citing which are not known to be negative[Green]  at pp 197-8: 
‘The second species, which I will call “issue estoppel”, is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation on one such cause of action any of such separate issues whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either on evidence or on admission by a party to the litigation, neither party can, in subsequent litigation between them on any cause of action which depends on the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was. ’”
Applying the requirement of prior decision of an essential issue, in this appeal, an issue estoppel can only arise if it was necessary to find that there was no physical injury. 
Mr Beck submitted further that the claim was not defeated by the rule in Henderson v Henderson (1843) 3 Hare 100Has Cases Citing which are not known to be negative[Green] . That rule requires that a party is generally required to bring its whole case in one proceeding. The doctrine was explained by the House of Lords in Johnson v Gore Wood & Co [2002] 2 AC 1 (HL)Has Cases Citing which are not known to be negative[Green]  at 31 as follows: 
“It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. ”
Mr Beck submitted that there does not appear to be any reported case of the Henderson v Henderson doctrine being applied in the accident compensation jurisdiction. However that is not correct. As Ms Lester noted, it was considered by Judge Cadenhead in Wood [2003] NZACC 80, in which he said: 
The principles of cause of action estoppel (res judicata), issue estoppel and abuse of process have been exhaustively considered in the cases of Arnold v National Westminster Bank Plc [1991] 2 AC 93Has Cases Citing which are not known to be negative[Green] ; Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37Has Litigation History which is not known to be negative[Blue]  and Johnson v Gore Wood & Co [2001] 1 All ER 481Has Cases Citing which are not known to be negative[Green] . In those cases the following principles emerge: 
Cause of action estoppel is narrower in scope from issue estoppel: the latter can arise where a plea of res judicata in the strict sense is not open because the causes of action are not the same. 
For there to be cause of action estoppel the cause of action sought to be estopped must be precisely the same as that upon which there has been an earlier adjudication. 
Issue estoppel is concerned with the prior resolution of issues rather than the causes of action. Issue estoppel precludes a party from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against the party. 
The underlying principles upon which issue estoppel is based, is the balance between finality of litigation and individual justice. Cause of action estoppel gives greater weight to the public policy objective of finality to litigation. 
The celebrated dictum in Henderson v Henderson (supra) requires the parties, when a matter becomes the subject of litigation between them in a Court of competent jurisdiction, to bring their whole case before the Court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the Court to advance arguments, claims or defences which they could have put forward for decision on the first occasion, but failed to raise. The rule is based on public policy. It is desirable in the general interest and that of the parties themselves, that litigation should not drag on forever, and that a defendant should not be oppressed by successive suits. 
There is less scope for finding special reasons in respect to cause of action estoppel as opposed to issue estoppel. Cause of action estoppel operates to prevent a party re-litigating a claim he has lost, even if he is now able to show that the earlier decision was wrong. The rule however, may be relaxed in regard to interlocutory or summary decisions. ”
Ms Lester for the respondent submitted that consideration of the first claim necessarily had to focus on an injury, because tinnitus itself is not an injury. The appellant's representative at the first review argued that the chiropractic treatment had caused a kind of whiplash injury, and that was the focus of the review. The Reviewer decided that there was no evidence that a personal injury had been caused by the treatment. 
Ms Lester submitted that a finding of no evidence to support the claim for personal injury is the same as finding that there was no personal injury, and the appellant is not permitted to keep revisiting the matter. If new evidence was produced, the Corporation may be required to investigate the claim further, but it examined the evidence put forward for the second claim and determined that there was no new evidence. 
Ms Lester submitted that, at best, this is a case where the appellant claimed there was a strain or sprain In the manner of a whiplash type injury (clearly as a necessary part of trying to prove a tinnitus claim), but failed to satisfy the Court to the required degree of that. It is therefore difficult to see how such a situation could give rise to credible argument in terms of special circumstances, to justify re-litigation. She submitted that it is not a case where cover has been denied for one type of injury on the ground that it was not submitted at the same time as a claim for another type of injury. While the first application was described as concerning tinnitus, it could not as this was not in itself an injury. Rather a determination of an injury event occurring which led to tinnitus was required. The original claim could not possibly succeed in the way it was framed and put (tinnitus not being an injury) and that in order to respond to the matters within that claim, a consideration of any injury event giving rise to tinnitus was required. 
The Reviewer found, that there was no evidence of any other injury, and reached that conclusion despite submissions to the contrary. It was submitted that the appellant has effectively reframed the claim to specifically a neck sprain, which is exactly the same thing that was argued in the first review hearing. 
In reply to arguments advanced in the appellant's written submissions, Ms Lester submitted: 
that it is not correct to say that there was no decision that no physical injury was suffered, because the Reviewer found that there was insufficient evidence to show an identifiable physical injury, on the balance of probabilities. The onus lies with the claimant once the claim has been investigated. 
that it is not correct to say that there was no record of a medical investigation, because the decision letter recorded that the decision was reached after looking at all the evidence provided under the original claim, the hospital record, and recent clinical notes from the appellant's GP. 
Mr Beck submitted that it was not necessary, in the tinnitus review, to find that there was no (or no evidence of) physical injury. At most, it was only necessary to find that there was no physical injury capable of causing tinnitus. That did not require a finding that there was no physical injury at all. 
In Dr Blake's opinion a chiropractic manipulation could not cause tinnitus. If that is accepted, then it was not necessary to take an intermediate step to enquire whether there was a physical injury. The treatment itself, injury or not, was not capable of causing tinnitus, even if it was capable of causing a physical injury. 
This is more than a technical quibble. The Corporation took a tinnitus based approach to the first claim. The decision declining the claim was accompanied by a Treatment Injury Report that explained the investigation and decision. The report gave prominence to Dr Blake's opinion that the treatment could not have caused tinnitus. Dr Blake did not give an opinion on the neck injury by way of a separate enquiry, and the whole tenor of his opinion was that, whether or not the treatment might have caused a neck injury, the treatment would not have caused tinnitus. 
The Reviewer also took a tinnitus based approach, because that was what the claim was about 
In investigating and reviewing the tinnitus claim, a neck injury was not an essential part of the decision. It was considered, but only in the context of the primary proposition that chiropractic manipulation could not cause tinnitus. There was an incidental mention that some forms of tinnitus may coexist with somatic lesions in the upper cervical spine, but that was far from the focus of the enquiry. 
The appellant now makes another claim for a neck injury. For the foregoing reasons, I find that there is no issue estoppel against that claim. 
I consider also that it is not a case in which the appellant was required to bring his whole case in one proceeding. The reason for that is simply that the legislation does not prevent a claimant from making a second claim for injury arising out of the same event. It is not unusual for a second claim to be made when initial symptoms suggest one injury and later on other symptoms emerge that suggest another injury — but from the same accident or treatment events. The second claim is not barred on the Henderson principle on the ground that all matters should have been advanced in one claim. 
That is what happened in the present case. The claimant already had a neck problem and tinnitus, His immediate symptom was the increase in his tinnitus, for which he made a claim. The medical notes show that, after the first review decision, the appellant's neck symptoms also became worse and he was concerned about a neck injury. 
The Corporation examined the evidence in the appellant's second claim and decided that there was no new evidence. It pointedly did not issue a decision in the usual form, but it notified the appellant that there was no new evidence and that the claim had previously been determined. In other words it relied on an issue estoppel, and advanced that position at review. 
The Corporation's letter did indicate a decision on the two fact questions that have been discussed in this appeal; whether in fact there was no new evidence, and whether the claim was for the same neck injury. It was therefore a decision open to review. 
For the foregoing reasons, I find that there was no issue estoppel and the claim is not barred for failure of the appellant to bring his whole case at the earlier review hearing. 
The review decision is quashed. The appeal is allowed with the effect that the review decision is quashed and another review will now be required. Leave is reserved to apply for directions if necessary. 
The appellant will have costs of $2,500 for an appeal which is limited to a jurisdiction issue, and reasonable disbursements. 

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